Siman 279

Our teacher, the Beit Yosef, wrote: One who says "this is my son," "this is my brother," "this is my father's brother," or any other heirs, even though he admitted this regarding people who were not established as being his relatives, he is believed and they shall inherit from him. This applies whether he spoke while he was healthy or whether he spoke while he was a shekhiv mera. Even if he became mute and wrote in his handwriting that this person is his heir, they examine him in the manner that they examine for gittin. Thus far his words. Our teacher, the Rema, wrote that he is believed regarding all assets, whether those he possessed at the time he spoke thus, and even assets that fall to him while he is in a state of gosses. Thus far his words.

The explanation of the matters is that in siman 277 it was explained that the Torah trusted a father to say regarding a firstborn that he is not a firstborn and regarding one who is not a firstborn that he is a firstborn, and the same applies to all his sons—the Torah trusted him. For since he is trusted to say regarding one who is not a firstborn that he is a firstborn, he perforce says regarding his first son that he is a mamzer, as is written there. However, regarding other relatives, the Torah did not trust him, except regarding the matter of bequeathing to them; he is trusted regarding all relatives by way of a migo, for if he desired, he could have given him all his property. Therefore, one who says "this is my son and you shall give him my property," or when he has no sons and says "this is my brother and you shall give him my property," or if he also has no brothers and says "this is my father's brother and you shall give him my property," they must fulfill his word because of the migo that he has. But regarding a son, it is not from a migo alone, but rather that the Torah trusted him, and even if he has no migo, he is trusted.

And according to this, there is a difference between the credibility of the son and other relatives, for regarding all other relatives, he is only credible concerning assets he currently possesses because he has a migo, but not regarding assets that come into his possession after this time, as a person cannot transfer ownership of something that has not yet come into the world and he has no migo. This is certainly true regarding assets that will fall to him when he is a gosses, for even when they come into the world, he will not be able to transfer them then. However, regarding his son, he is credible concerning everything [the Gra]. And according to this, it must be said that what our teacher, the Rema, wrote—that he is credible concerning everything—refers only to his son, and so it appears from the source of the law [the Rosh, chapter Yesh Nochalin, siman 39]. But some say that regarding all of them, he is credible concerning all assets through a migo that if he wanted, he could have obligated himself to them in documents for whatever sum he desired [Urim VeTumim, siman 60]. Nevertheless, regarding assets that will fall to him after death from some testator, he does not have even this migo, for the heir who comes to inherit will say that he does not inherit through the power of this person but through the power of that testator, and his debts are not collected from this inheritance [Netivot HaMishpat]. And for the law, it appears like the first opinion, for we do not find a migo based on the ability to obligate oneself [for if not so, it is difficult in Bava Batra 127b as the Mishneh LaMelech wrote in chapter 11 of Hilkhot Mekhirah, and the resolution of the Ketzot HaChoshen is forced; and examine this].

If we have a presumption regarding Reuven that he is the brother of Shimon or his cousin and is fit to inherit from him as he has no closer relative than him, and Shimon said, "He is not my brother" or "He is not my cousin," he is not believed, and when he dies, Reuven shall inherit from him, for regarding other relatives the Torah did not believe him, as has been written. And even though he has a migo, for if he wanted he could have given his property to others during his lifetime, nevertheless, we do not say migo in a place of a strong presumption such as this. However, he is believed regarding one who was presumed to be his son to say that he is not his son, as has been written. The nature of the presumption was explained in siman 277.

In Even HaEzer siman 4 it was explained that specifically regarding his son is he believed to say he is not his son, and even to make him a mamzer, but regarding his grandson he is not believed. Therefore, when his son has a son, he is not believed even regarding his son, for if so, the grandson would also be a mamzer, and it is impossible for his son to be a mamzer and his grandson not to be a mamzer. Nevertheless, the Rambam, of blessed memory, wrote that this is regarding lineage, but regarding inheritance he is believed to say regarding his son that he is not his son even when the son has children, and the son shall not inherit from him. For since the grandson has no current connection to the inheritance while his father is alive, and he also has the power to give his property to another, he is believed regarding his son that he shall not inherit from him, even though he is not believed to disqualify him. And if the son died and he said regarding his grandsons, "these are not my grandsons because their father was not my son," he is not believed even regarding the inheritance, for the Torah only believed him regarding his son; and since the son is not alive, the primary belief is regarding his grandsons, and regarding them the Torah did not believe him [the Maggid Mishneh, chapter 4 of Laws of Inheritances]. And just as he is not believed regarding other relatives to remove them from their established status, so too conversely, if they were established as not being his relatives, he is not believed to say that they are his relatives even though he has a migo, for the reason that has been explained [Netivot HaMishpat].

In siman 277 it was explained that even though the Torah believed him regarding his sons, nevertheless, he cannot retract his words. Therefore, the sages of blessed memory said [Bava Batra 127b]: One who comes and says regarding someone, "He is my son," and then retracts and says, "He is my slave," he is not believed, and this person shall inherit from him when he dies. And even if he provides an explanation as to why he called him his son—because he loves him like a son—nevertheless, he is not believed, for it is not the way of the world to call a slave "son." But the opposite—where he initially said, "He is my slave," and then retracted and said, "He is my son"—he is believed, even if he serves him like a slave. For on the contrary, because of this he has an explanation to say that his saying "He is my slave" was to say that he is like a slave to him in his service. And even if we did not see him serving him like a slave, nevertheless, he can say that this son is so dear to him that he is like a slave to him in his service, for there are times when a father calls his son his slave in this manner, and therefore this is not a complete retraction from his initial words. Nevertheless, if he was calling him "a slave, the son of a maidservant" or "a slave worth one hundred zuz" and similar such things, he is not believed to retract, for if he were his son, he would not degrade him by calling him by such names, which it is not the way to call anyone except absolute slaves.

There are those who say that this rule—that he is not believed to retract from saying "son" to "slave"—applies specifically after the time of a speech-interval, but within a speech-interval he may retract, for anything within a speech-interval is like the speech itself [Tur]. And there are those who disagree on this [Rashbam ibid.], and the reason is that we are witnesses that had he been his slave, he would not have let it escape his mouth to say of him "my son" [Beit Yosef]. And specifically to say "he is my slave" he is not believed, but to retract and say "he is not my son, rather he is beloved to me like a son," he is believed even after a speech-interval, for it is common to say of a person who is beloved to him "my son," and this is not a complete retraction [ibid.].

And our Sages, of blessed memory, said that the opposite of this law is the case when one passed on the road by a den of bandits who established among themselves to take a tax from slaves and not from sons, for such was their way in the time of the Sages of the Shas: if at first he said, "He is my son," and then retracted and said, "He is my slave," he is believed, for he intentionally said so in order to exempt him from the tax of the bandits. But if at first he said, "He is my slave," and then retracted and said, "He is my son," he is not believed, for if that were the truth, he would not have said of him that he is a slave and paid for him; rather, certainly the truth is so. And all matters of credibility regarding a slave are not to establish this person as a slave, for the Torah did not believe him regarding this even if this man has no established status at all, but rather the credibility is regarding his inheritance, for if he is believed to say he is a slave, he does not inherit from him, and if not, he inherits from him [Taz], not as there is one who disagrees in this. And even in such a case, he is not believed to say that he is a slave except when the mother of this man was not established as a daughter of Israel; but if his mother was established as a daughter of Israel, he is not believed to say, "He is my slave," even to remove him from inheritance, for if he is a slave, it is necessary that his mother is a maidservant, and the Torah did not believe him to remove her from her established status even when he has a migo, for the reason we wrote in section 4. And even though the Torah believed him even to make him a mamzer, nevertheless, it only believed him regarding what concerns the son alone, like a mamzer whose mother is a daughter of Israel; but regarding a slave, it is necessary that his mother is a maidservant, and regarding his mother the Torah did not believe him [Bach], and consequently, he is also not believed regarding him. And if his mother has already died and there are no other children from her, such that now the matter only concerns the son, it is possible that he is believed.

Slaves and maidservants, even when they are honorable and elderly, one does not call them "Father So-and-so" or "Mother So-and-so" in the manner that one calls honorable elders, so that the matter does not lead to a pitfall; for one who hears him call her "Mother" will say that he is her son, and they will spread a rumor about him that he is a slave according to the law of a son of a maidservant, and thus he becomes flawed. And also regarding a slave, if they say about him that he is the son of a slave, even though he is not genealogically related to him as was written in Even HaEzer siman 4, nevertheless he is at least flawed [Sma]. And since the concern is only because of this reason, therefore, if they were exceptionally prominent and have a reputation and the entire congregation knows them, like Tavi the slave of Rabban Gamliel and like the maidservant of Rabbi or the slaves of the Nasi, it is permitted to call them Father and Mother.

The Rambam wrote in the fourth chapter of Nahalot: One who had a maidservant and fathered a son from her, and was accustomed to treating him as a son, or said "he is my son and his mother is a freedwoman"—if he is a Torah scholar or a virtuous person who is scrutinized in the minutiae of the mitzvot, this son shall inherit from him. Nevertheless, he may not marry a daughter of Israel until he brings proof that his mother was freed and then gave birth, for she was established as a maidservant before us. But if he is of the rest of the commoners, and it goes without saying if he was of those who abandon themselves to such things, he remains with the status of a slave in every regard; his brothers from his father may sell him, and if his father has no son except for him, his father's wife must undergo yibbum. Thus far his words. Our teacher, the Beit Yosef, transcribed this in section 6. The Rambam wrote that this law appears to him to be from the principles of tradition. There is one who did not distinguish between virtuous people and the rest of the people except regarding the matter that his brothers may not sell him alone. And there is one who instructed that even regarding inheriting from him, we do not distinguish among Israel, and it is not proper to rely on this matter. Thus far his words. The explanation of his words is that there are some of the Geonim who said that this which we establish, that one who cohabits with a maidservant, the offspring is like her, this is regarding the maidservant of others; but with his own maidservant, we say that he certainly freed her and he is his son in every regard, whether for prohibition or for monetary matters. And there are some of the Geonim who are in doubt about this and ruled that we follow the stringency: regarding prohibition and monetary matters he does not inherit from him, for we do not extract money in a case of doubt, and the heirs cannot sell him; and if he wishes to marry a daughter of Israel he requires a writ of manumission, and if he betrothed a daughter of Israel she requires a get due to doubt, and if he wishes to marry a maidservant we do not allow him [the Rif, second chapter of Yevamot]. But the Rambam, of blessed memory, holds that we do not distinguish between one maidservant and another in an ordinary case, for even with his own maidservant we maintain his status as a certain slave. And so he wrote in the ninth chapter of Avadim: An Israelite who cohabits with a Canaanite maidservant, even though she is his maidservant, the offspring is a Canaanite in every regard; see there. Only regarding the matter of inheritance does he hold that since it is in his power to give his money to whomever he wishes, therefore if he is a Torah scholar or at least a virtuous person and behaves with him as a son, we rely on him regarding this matter by the reasoning of a migo. But regarding an am ha'aretz, he is not believed even with a migo in a place of a strong presumption such as this, where the mother has the status of a maidservant [the Maggid Mishneh]. Our teacher, the Rema, wrote that there are those who say she performs chalitzah and does not undergo yibbum. Thus far his words. For when his father has no other son besides him, where the opinion of the Rambam is that his legitimate wife even undergoes yibbum, he was concerned for the opinion of the Geonim for stringency, that perhaps he freed her and he is a complete son and exempts his father's wife from yibbum; see Even HaEzer siman 156. The opinion of the Tur is that regarding monetary matters, the burden of proof is on the claimant, and he does not inherit from his father, and the property remains in the possession of the rest of the heirs; and to this our teacher, the Rema, agreed.

An incident occurred with one who committed an act of zenut with an unmarried woman and sent her out of his house, and afterward brought her back and said regarding the child she bore that it was his son. The Rashba, of blessed memory, ruled that he is believed, for presumably he knew with certainty that she did not commit zenut with another and it is from him, and we do not fear that he says this based on estimation. This is specifically when she was a servant in his house and was constantly accustomed to being with him, but without this, we fear that she also committed zenut with others [Sema]. And even for inheritance he is not believed, for although he has a migo, nevertheless we say that he does not want to lie so that we would believe him with a migo, but rather he speaks through imagination, for he imagines in his mind that it is so, and he himself is also mistaken in this.